Not everyone needs a marital agreement. Generally, the following situations call for the drafting of a marital agreement:
--There is a family business or trust in which one of the parties is involved, and the party who is involved in the business or is a beneficiary of a trust wants to make sure it is protected from a claim by a spouse.
--One spouse has significant assets, while the other spouse has very little. Often, the marital agreement will exempt the more affluent spouse from claims from the less affluent spouse.
--One or both spouses have children from prior relationships and want to make sure that those children inherit, rather than having the wealth go to the new spouse.
The key to whether a marital agreement will be upheld is full disclosure. The spouses or potential spouses must disclose all of their assets and the values of those assets. It is also important that both spouses are represented by independent attorneys. One attorney cannot represent both of the spouses or potential spouses. Often, the more affluent spouse will pay for the attorney of the less affluent spouse.
Generally, the marital agreement will cover what is to happen in the event of the death of one of the spouses or a divorce of the parties.